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Canadian Defamation Law

"Good name in man and woman, Is the immediate jewel of their souls. Who steals my purse steals trash; 'tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands. But he that filches from me my good name robs me of that which not enriches him and makes me poor indeed."

Shakespeare’s Othello, Act 3, Scene 3

Defamation was well described in a 1970 British Columbia Court of Appeal decision called Murphy v. LaMarsh (13 DLR 3d 484).

A Member of Parlaiment, Judy LaMarsh wrote about the plaintiff as follows:

"A brash young radio reporter, named Ed Murphy (heartily detested by most of the Press Gallery and the members), had somehow learned that Maurice Lamontagne (then Secretary of State, and a long-time friend and adviser of the Prime Minister) had purchased furniture but had not paid for it."

In finding that there was actionable libel, the BC Supreme Court (appeal dismissed) wrote:

"(Defamation is where) a shameful action is attributed to a man (he stole my purse), a shameful character (he is dishonest), a shameful course of action (he lives on the avails of prostitution), (or) a shameful condition (he has smallpox). Such words are considered defamatory because they tend to bring the man named into hatred, contempt or ridicule. The more modern definition (of defamation) is words tending to lower the plaintiff in the estimation of right-thinking members of society generally."

Another authority often cited as definitive on defamation is Gatley on Libel and Slander who wrote this, as was adopted in Thomas v CBC 1981 4 WWR 289:

"The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory."

The common law protects every person from harm to their reputation by false and derogatory remarks about their person, known as defamation.

In addition, all Canadian provinces have libel/slander legislation (defamation includes slander and libel, where slander is verbal defamation and libel is printed defamation).

It is a tricky and slippery field of law, based on statutes, English common law and many defences. No wonder it has been called a "peculiar tort" and, from Broadway Approvals, Ltd. v. Odhams Press, Ltd., 1965 2 All ER 523:

"The law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels."

Defamation tort law protects your reputation, not your feelings.

The major points of defamation law in Canada are as follows:

Defamation is an unusual tort in that it is a "strict liability" tort. In other words, it does not matter if the defamation was intentional or the result of negligence.

Defamatory material is presumed to be false and malicious. "Whatever a man publishes", according to one case, "he publishes at his peril."

Defamation must be a direct attack on an actual reputation, not an alleged reputation that a "victim" believes they deserve. A judge will assess the statement against the evidence of the victim's reputation in their community.

The remarks must be harmful (i.e. "defamatory") and this will be assessed on a case-by-case basis. Some statements are clearly defamatory. Other statements would only be defamatory to the person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one person may constitute serious defamation to another. The judge will consider the situation of the person defamed in assessing the claim of defamation.

The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks aimed at a large audience would not qualify as the remarks must be clearly pointed at a specific person.

The defamatory remarks must be somehow conveyed to a third party. Private defamation just between two parties causes no damage to reputation because there are no other persons to be impacted by the remarks. With libel, the damage is presumed as it is published. With slander (verbal defamation), proof of repetition to other people is essential to the claim; damages have to be proven (there are four exceptions: the defamation imputes the commission of a crime, the unchaste status of a woman, a "loathsome disease", or a professional incompetence).

There are a number of special defences available against defamation:

The "defamatory" remark was basically accurate.

The plaintiff agreed with the defamatory remarks. For example, if the plaintiff subsequently publishes the remarks, they would be hard pressed to succeed in a defamation claim.

Some special privileges exist for remarks made in certain venues such as in a court room during trial or in a legislative assembly or one of its committees. A privilege against defamation claims also exists for judicial or legislative reports.

There is what is known as a "qualified privilege" where remarks that may otherwise be construed as being "defamatory", were conveyed to a third party non-maliciously and for an honest and well-motivated reason. An example would be giving a negative but honest job reference. The criteria for this defence are: defamation was incidental to the protection of an interest or discharge of a duty and the remarks were given to a person who had an interest in receiving the information. In assessing this defence, judges will ask themselves whether a reasonably intelligent person would have given the information to the person to whom it was conveyed.

Citizens are entitled to make fair comment on matters of public interest without fear of defamation claims. A good example of this is a letter to the editor on a matter of public concern. The author of the remarks may even go so far as to presume motives on the part of the person who's actions are being criticized provided only that the imputation of motives is reasonable under the circumstances. The rule of thumb is that the fair comment must reflect an honestly held opinion based on proven fact and not motivated by malice. It should be noted, however, that some provinces have enacted laws which give their citizens varying rights to fair comment.

Situations which involve racial or hate defamation might find a more expeditious and cost-effective recourse through human rights legislation rather than defamation.

You should also be aware that most provinces have implemented very short limitation periods with regards to alleged defamation appearing in newspapers or broadcast (as short as six weeks in some cases) so time may be of the essence.

Always to be remembered is the wise advice from H. W. Shaw:

"A slander is like a hornet. If you cannot kill it dead the first blow, better not strike at it."

Given the legal and emotional costs in defamation litigation, and the fact that the claim itself re-advertises the slander or libel, from George Washington:

"To persevere in one's duty and be silent is the best answer to calumny."

And: "A man may write himself out of reputation when nobody else can do it." Thomas Paine.

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Litigant: a person about to give up his bones to save his skin.
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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.